REPORT OF THE JUDGES OF THE - Courts Annual... · Mr Antony Reid-Smith LLB . ... Courtrooms 1 and 5...

REPORT OF THE JUDGES OF THE SUPREME COURT OF SOUTH AUSTRALIA

TO THE ATTORNEY-GENERAL PURSUANT TO

SECTION 16 OF THE SUPREME COURT ACT 1935 (SA)

FOR THE YEAR ENDED 31 DECEMBER 2008

The Judges of the Supreme Court have assembled, as directed by s 16 of the Supreme Court Act 1935 (SA), and considered the matters referred to in that section. In consequence, they furnish this Report for the year ending 31 December 2008.

TABLE OF CONTENTS

Constitution of the Court............................................................................................... 3 Judicial Appointments and Retirements ........................................................................ 4

General................................................................................................................................ 4 Supreme Court Buildings............................................................................................... 4 Technology .................................................................................................................... 5 Video Conferencing Project ........................................................................................... 5 Aboriginal Cultural Awareness Program........................................................................ 6 Courts Aboriginal Reference Group (CARG)................................................................. 7 Joint Rules Advisory Committee.................................................................................... 7 Community Relations Committee .................................................................................. 8 Civil Change and Reform Group.................................................................................... 9 Criminal Law Change and Reform Group.................................................................... 10 Court Users Group....................................................................................................... 10 Committees and Programs.......................................................................................... 10 Changes in the Law..................................................................................................... 12

Key Performance Indicators...................................................................................... 12 Criminal Jurisdiction Backlog....................................................................................... 12

Table 1 – Combined (Supreme Court and District Court) Criminal Backlog ......................... 13 Table 2 – Supreme Court Criminal Backlog – Non-Appeal................................................... 13 Table 3 – Court of Criminal Appeal Backlog ......................................................................... 13

Criminal Jurisdiction Clearance Ratio.......................................................................... 14 Table 4 – Combined (Supreme Court and District Court) Criminal Clearance Ratio (non-

appeal) .................................................................................................................. 14 Table 5 – Supreme Court Criminal Clearance Ratio – Non-Appeal...................................... 14 Table 6 – Court of Criminal Appeal Clearance Ratio ............................................................ 14

Civil Jurisdiction Backlog ............................................................................................. 15 Table 7 – Supreme Court Civil Backlog – Non-Appeal ......................................................... 15 Table 8 – Supreme Court Civil Backlog Appeals (Includes Magistrates’ Civil and Criminal

Appeals) ................................................................................................................ 15 General Statistics .......................................................................................................... 16

Time Standards ........................................................................................................... 16 Table 10 – Target Standards and Actual Achievements....................................................... 17 Table 11 – Full Court and Court of Criminal Appeal Time Intervals...................................... 18 Full Court and Court of Criminal Appeal .............................................................. 18 Table 12 – Permission to Appeal Applications to the Court of Criminal Appeal ................... 18 Table 13 – Appeals and Applications to the Full Court and Court of Criminal Appeal .......... 19 Table 14 – Disposals by Hearing .......................................................................................... 19 Table 15 – Full Court – Average Hearing Lengths................................................................ 19 Single Judge Appeals.................................................................................................. 20 Table 16 – Disposals by Judgment – Single Judge Appeals ................................................ 20 The Civil Jurisdiction .................................................................................................... 20

Lodgements ................................................................................................................. 20 Table 17 – Civil Jurisdiction – Matters Instituted................................................................... 20 Land and Valuation Court .......................................................................................... 20 Table 18 – Land and Valuation Division ............................................................................... 22 Table 19 – LVD Actions Commenced................................................................................... 22 Civil Trials ............................................................................................................................. 22 Table 20 – Civil Trials ........................................................................................................... 23 Table 21 – Civil Trial Details ................................................................................................. 23 Long and Complex Civil Cases ............................................................................... 23 Table 22 – Long and Complex Cases................................................................................... 24

REPORT OF THE JUDGES OF THE SUPREME COURT TO THE ATTORNEY-GENERAL YEAR ENDED 31 DECEMBER 2008

Masters’ Jurisdiction..................................................................................................... 24 Table 23 – Applications Dealt with by Masters ..................................................................... 25

Case Flow Management.............................................................................................. 25 Table 24 – Number of Conferences...................................................................................... 25

Bill of Costs and Schedules of Costs........................................................................... 26 Table 25 – Contentious Bills – Masters’ Jurisdiction............................................................. 26 Table 26 – Non-Contentious Bills – Registrar’s Jurisdiction ................................................. 26 The Combined Criminal Registry............................................................................ 26

Lodgements ................................................................................................................. 26 Table 27 – Combined Criminal – Lodgements...................................................................... 26 Table 28 – Combined Criminal – Trial List Disposals ........................................................... 27 Table 29 – Combined Criminal – Length of Trials Proceeding to Verdict ............................. 27 Admission to the Legal Profession......................................................................... 27

Background.................................................................................................................. 27 LPEAC’s work in 2008................................................................................................. 28 The Board of Examiners .............................................................................................. 29

Table 30 – Applications for Admission.................................................................................. 29 Table 31 – Mutual Recognition Applications......................................................................... 30 Table 32 – Mutual Recognition – Applications by State........................................................ 30 Table 33 – Overseas Degrees Assessed ............................................................................. 30 Probate Registry............................................................................................................ 30 Table 34 – Probate Registry – Grants and Orders ............................................................... 31 Table 35 – Probate Registry – Total applications ................................................................. 31 The Library....................................................................................................................... 31

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Constitution of the Court On 31 December 2008 the Court was constituted of the following Judges, Masters and

Principal Administrative Officers:

Judicial Officers Chief Justice: The Honourable John Jeremy Doyle AC Justices: The Honourable Kevin Patrick Duggan AM RFD

The Honourable Margaret Jean Nyland AM

The Honourable David John Bleby

The Honourable Thomas Andrew Gray

The Honourable John Robert Sulan

The Honourable Ann Marie Vanstone

The Honourable Timothy Russell Anderson

The Honourable Richard Conway White

The Honourable Robyn Ann Layton

The Honourable Michael David

The Honourable Patricia Kelly

The Honourable Christopher John Kourakis

Masters: His Honour Judge Robert Martin Lunn

His Honour Judge Brian Withers Principal Administrative Officers Registrar of the Supreme Court, Registrar of Probates and Registrar in Admiralty: Mr Steve Roder LLB (Hons) Deputy Registrar of Probates: Mr Antony Reid-Smith LLB Senior Deputy Registrar, Supreme Court: Mr Errol Surman Acting Deputy Registrar, Combined Criminal Registry: Ms Michelle Caldwell BJS Acting Manager Registry Services, Civil Registry: Mr Simon De Bortoli Manager, Probate Services: Mr Kent Wilson AETI, PNA Manager, CAA Library Service: Ms Susan Carter BA

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Judicial Appointments and Retirements

The Honourable Justice Debelle retired on 20 June 2008 after 18 years as a Justice of the

Supreme Court.

The Honourable Justice Kourakis was appointed to the bench on 21 August 2008.

General The Supreme Court, as a participating Court in the Courts Administration Authority (“CAA”),

has contributed to the CAA’s Annual Report for 2007–2008.

The information contained in that report is not repeated here.

Supreme Court Buildings

Some reparation work has commenced on the exterior of that part of the Supreme Court that

houses the Civil Registry. However, the Supreme Court buildings continue to provide

facilities of an unsatisfactory standard in which staff, the legal profession and the judges

must work.

This impacts on the Court’s ability to provide a safe, healthy and efficient work environment

for its staff, for users of the Court, and for the judges. The layout of the building makes it

difficult to use staff in an efficient manner.

Staff are accommodated in cramped conditions. Public amenities are well below

contemporary standards in every respect. Courtroom No 1 and Courtroom No 2 have no

suitable waiting areas. The nearest public toilets can be reached only by leaving the

building, and walking about 100 metres to public toilets at the back of the building. There is

a lack of appropriate spaces for witnesses and others waiting at court. Hot water is not

available to all of the toilets. Buildings do not meet disability access standards. There is

disability access to only four of the 12 courtrooms. Only one of those four provides disability

access to the witness box. The flooding of part of the Library (dealt with later in this Report)

illustrates the hazards of working in unsatisfactory accommodation. The air conditioning in

some courtrooms is inadequate.

The Government has provided funds for the fitting out of two new criminal courtrooms in

Sturt Street. The additional courtrooms will enable more criminal cases to be listed. The

Government has agreed to appoint two additional District Court judges, so that full use can

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be made of the new courtrooms. These measures should result in some reduction in the

time that elapses before a criminal trial is listed in the District Court.

However, the use of two courtrooms at a site separated from the Supreme Court and the

District Court will cause some inefficiency, and some inconvenience to the public.

Technology

Potential efficiencies for the parties to civil proceedings and for the Court cannot be realised

because of the lack of technology infrastructure. The Court is still in the position of requiring

parties in long and complex cases to engage external service providers to provide the

technology infrastructure to support electronic trials (e-trials) because it lacks appropriate

facilities. The Court continues to consider how best to provide for e-trials in the context of

budgetary restraints.

Since 2006 the Court of Criminal Appeal has used electronic trial transcripts, instead of hard

copy. This resulted in reduced production costs for the Court, immediate access to

transcript during hearings, and enhanced search facilities.

The Court is considering using electronic transcripts of civil trials in Full Court appeal

hearings, subject to sufficient funding being available.

Video Conferencing Project

The aim of the Video Conferencing Project is, by increasing the use of video conferencing

and related facilities, and by improving those facilities, to improve the efficiency and the

management of the criminal justice system.

In August 2008 the Steering Committee approved Stage 1 of an approach focused on

demonstrating the effectiveness of a whole of Justice Video Conferencing environment in a

manageable number of courts and justice locations. The Supreme Court and District Court

sites included in Stage 1 are the Supreme Court Library Vulnerable Witness Suites and

Courtrooms 1 and 5 in the Sir Samuel Way Building.

The implementation of Stage 1 has commenced. The Supreme Court and the District Court

will begin using the new equipment early in 2009. If Stage 1 is successful, further

installations will be undertaken.

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Aboriginal Cultural Awareness Program

In December 2007 Justice French (as he then was), on behalf of the National Indigenous

Justice Issues Committee established by the National Judicial College of Australia, wrote to

Chief Justice Doyle and invited him to establish a State Committee to put proposals to the

National Committee for funding for judicial professional development programs in South

Australia.

The Chief Justice invited Justice Sulan to form a cross-jurisdictional State Committee and to

chair that Committee. That Committee was formed in early 2008. Members of the State

Committee are:

Justice Sulan (Supreme Court) - Chairperson

Justice Mansfield (Federal Court)

Justice Burr AM (Family Court)

Judge Tilmouth (District Court)

Federal Magistrate Mead (Federal Magistrates Court)

Mr Boxall SM (Youth Court)

Mr Johns SM (Coroner)

The new Committee replaces the previous Aboriginal Cultural Awareness Committee.

Justice Sulan is also a member of the National Indigenous Justice Issues Committee.

The State Committee met regularly throughout 2008. In November 2008 the Committee

held a very successful one-day conference for members of the judiciary and magistracy from

both State and Federal jurisdictions. The Conference was held at Nunkuwarrin Yunti in

Wakefield Street and included four guest speakers, as follows:

Ms Jenni Caruso (University of Adelaide), who spoke on “The Effect of Colonisation on

the Aboriginal Community”;

Dr Suzi Hutchings (independent consultant and anthropologist), who spoke on

“Appearing Before the Courts – A Discussion of Case Studies”;

Professor Peggy Brock (Edith Cowan University, WA), who spoke on “Aboriginal

People and Criminal Justice: Trends in Arrest and Incarceration Rates in South

Australia, 1836-1960s”; and

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Mr Major Sumner (Nunkuwarrin Yunti), who spoke on “A Ngarrindjeri Perspective on

Colonisation”.

The Conference was funded by the National Indigenous Justice Issues Committee.

It is anticipated that a trip to one of the Aboriginal communities will be organised for some

time in 2009.

Courts Aboriginal Reference Group (CARG)

At a meeting of CARG in September 2007, proposed amendments to the Terms of

Reference were discussed. Justice Sulan subsequently met with the Council of Aboriginal

Elders and invited them to nominate six community representatives to join CARG. The

Council of Elders nominated two community representatives, one of whom lived in Port

Lincoln.

After consultation with Mr Frank Lampard, who chaired a sub-committee of members of

CARG, Justice Sulan agreed with the sub-committee that there was little point in proceeding

with CARG for the time being, due to a difficulty in arranging appropriate representation on

CARG.

The CAA Council agreed that the pilot scheme for CARG be abandoned for the time being.

Joint Rules Advisory Committee

The Joint Rules Advisory Committee (“JRAC”) comprises two Judges, a Master and the

Registrar from the Supreme Court; three Judges, a Master and the Registrar from the

District Court; one Magistrate; the President of the Law Society; and three legal practitioners.

The role of JRAC is to prepare, review and revise the Rules of Court made pursuant to the

Supreme Court Act and the District Court Act. The Rules regulate the procedures and

practice in the Supreme and District Courts. JRAC also has a role in the preparation and

review of the Practice Directions of both the Supreme Court and the District Court. It is

JRAC’s responsibility to ensure that the Rules of Court and Practice Directions are adequate

to deal with the requirements of contemporary litigation, and to assist in the efficient running

of the Courts. In order to ensure that the legal profession is informed of amendments made

to Rules and Practice Directions, and to ensure that amendments reflect practical needs,

JRAC liaises directly with the profession by consulting with professional organisations such

as the Law Society and the Bar Association.

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During the year, JRAC recommended changes to the Supreme Court’s Civil Rules,

Corporations Rules, Probate Rules, Criminal Rules, Criminal Appeal Rules and Bail Review

rules and to the District Court’s Civil Rules, Criminal and Miscellaneous Rules. These

amendments were made by the respective courts.

A number of the amendments were necessary because of legislative changes, for example,

the Child Sex Offenders Registration Act 2006.

In addition, JRAC recommended changes to the Supreme and District Court Practice

Directions.

The civil e-filing pilot program has not been a success. No e-filings occurred in 2008. Quite

substantial use of e-filing has occurred in interstate courts and the Adelaide registries of the

Commonwealth courts. JRAC is investigating the experience of those courts with a view to

recommending changes to the Court’s program.

A member of JRAC is a member of the national committees, chaired by Justice Lindgren of

the Federal Court, which are harmonising rules of civil procedure on topics considered

suitable for harmonisation. During the year, amendments to the Supreme and District Court

Civil Rules and to the Supreme Court Corporations Rules were made in accordance with

proposals by the national committees.

Community Relations Committee

The Community Relations Committee reports to the State Courts Administration Council and

comprises judicial officers and senior administrative staff. The committee meets monthly

and is responsible for the Authority’s Community Involvement Plan.

The committee oversees a Community Reference Group (CRG), comprising representatives

from 14 community organisations. The CRG provides comment on the desirability and

effectiveness of court-initiated activities that are intended to improve public trust and

confidence in, and understanding of, the work of the courts.

Community relations work in 2007-08 included:

• a mock public sentencing demonstration at the Courts Annual Open Day. More than

1500 people attended the Open Day;

• several community activities in the South-East, including a ‘Day on the Bench’;

• several mainstream news feature articles explaining court processes;

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• quarterly online publication of a Courts Newsletter on the CAA website, explaining

court services and processes;

• reviewing information stations in courthouses; and

• a redesign of Ask the Judge, an interactive educative e-mail centre for students, who

pose questions to judicial officers. Answers are also published to the site where they

can be researched. Approximately 120 questions and 110 answers were dealt with

this year.

This year, five judicial officers and magistrates gave talks to about 275 members of the

public involved in community groups. Most talks lasted around 45 minutes, with most

questions from the public being about the sentencing process.

Court staff provided presentations at courts and community venues for a further 450

members of the public.

In addition to those talks, this year 27 organisations (in all, about 650 individuals) visited

courts in the city centre. Those visits are additional to visits that occur during Court Open

Day and Law Week. It is intended that statistics relating to visits to country courts will also be

reported on in future years.

During the year, the Courts Education Officer held workshops and tours for more than 4000

school students and specialist educator groups, and supported a Young Women in

Leadership seminar for approximately 80 senior school girls. The Education Officer also

presented the courts’ website resources to 30 teachers at a forum in July. This was

repeated, in response to demand, in October, commencing with a Magistrates Court and

courts precinct tour. The Education Officer arranged for six judicial officers to attend a

training evening dinner with 60 legal studies teachers, and coordinated completion of a

virtual tour of the Youth Court.

Civil Change and Reform Group

The Chief Justice established a group to consider changes to civil procedure and practice

that might be able to be implemented without legislative amendment.

The Group is chaired by Justice White and includes a District Court Judge, the Registrar of

the Supreme Court and three practitioners.

The Group met on eight occasions in 2008.

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Criminal Law Change and Reform Group

The Chief Justice established a group to consider changes in the exercise of the Court’s

criminal jurisdiction that might be possible to implement without legislation. The Group is

chaired by Justice Sulan and includes a District Court Judge, the District Court Registrar and

two practitioners.

Court Users Group

The Court invited business, community, government and professional groups that have

some involvement with the Court’s work to comment on the Court’s processes and services

and to participate in sub-groups that might formulate proposals for improvements in the

Court’s processes and services that it provides.

The Group is chaired by the Registrar and met on two occasions during the year. A number

of sub-groups have been set up.

Committees and Programs

The Judges of the Court participate in the work of various organisations, committees and

programs, which support the work of the Court and the work of the judiciary, and which in a

general way promote the administration of justice. Some of these activities are intended to

improve the operations of the Court and its administration. Others are concerned with

professional development for the judiciary of the courts of the State. As well, Judges are

involved in the legal profession’s program of education and professional development.

Judges are also actively involved in the CAA’s Community Relations Program. Through this

program judges help the public better understand the administration of justice in the State.

It is not practical to record all of these contributions to the administration of justice and to the

work of the judiciary. However, a summary of this aspect of the work of the judges follows.

The Australian Institute of Judicial Administration (AIJA) conducts professional skills courses

and seminars for judicial officers and others involved in the administration of justice. Three

members of the Court are members of committees of the AIJA.

The Judicial Conference of Australia (JCA) draws its membership from judges and

magistrates from all of the Australian courts. Its activities include informing the community

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about the role of the judiciary, and promoting improvements in the administration of justice.

Justice Debelle was the Chair of the JCA until his retirement. Another member of the Court

is a member of the Council of the JCA.

The National Judicial College of Australia (NJCA) is funded by the Commonwealth and some

State and Territory Governments. It provides professional development programs to judicial

officers throughout Australia. Three judges of the Court are members of committees of the

NJCA.

The Judicial Development Committee was established by the Chief Justice to provide

professional development programs for the judges and magistrates of the Courts of the

State. The Committee is chaired by Judge Trenorden of the District Court. It presents a

number of professional development programs for judges and magistrates during the course

of the year. One member of the Supreme Court is a member of that Committee.

The Law Admissions Consultative Committee (LACC) comprises representatives of the

authorities in each State and Territory that are responsible for the admission to practice of

legal practitioners. LACC works closely with the Legal Practitioners Education and

Admission Council, the work of which is dealt with later in this Report. One member of the

Court is a member of LACC.

A number of the judges of the Court support the professional development programs of the

Law Society of South Australia by serving on committees that present those programs, and

by their involvement in the presentation of particular professional development programs.

Judges of the Court chair the Professional Development Advisory Group and the Advocacy

Committee, and other judges are regularly involved in the work of these two bodies.

From time to time judges of the Court are asked to provide lectures or presentations to

students studying law at one of the State’s three universities offering a degree in law, and to

students undertaking the Graduate Diploma of Legal Practice. A member of the Court chairs

the Advisory Board of the Law School at the University of Adelaide.

The Law Foundation makes grants to promote legal research, education and community

projects related to the law. A Judge of the Court is the chair of the Foundation.

In addition to the above, judges of the Court from time to time undertake speaking

engagements to a wide range of community groups, using these engagements as an

opportunity to inform members of the public about the administration of justice in the State.

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Changes in the Law

As in previous years, the Chief Justice commented on a number of Bills and legislative

proposals at the invitation of the Attorney-General. A committee of judges considered some

of these. In accordance with practice, comment was restricted to the practical application of

the proposals, as distinct from policy issues.

Legislative changes that are likely to have significant impacts on the Court include the

Serious and Organised Crime (Control) Act 1998, the Statutes (Amendment) Evidence and

Procedure Act, 2008 and the Criminal Law Consolidation (Rape and Sexual Offences)

Amendment Act 2008.

Key Performance Indicators

Key Performance Indicators (KPIs) are used to indicate trends in the management of the

Court’s work. Other statistical reports record lodgements, disposals and time taken at

various stages. The KPIs indicate whether the Court is coping and is expected to cope with

its workload. KPI reports are prepared for the civil, probate and criminal jurisdictions. Each

of these is referred to below with an explanation of how they are derived and the result for

the year ending 31 December 2008.

Criminal Jurisdiction Backlog

Two timeliness standards are applied. The first of these is that “no more than 10% of

lodgements pending completion are to be more than 12 months old”. The second is that “no

lodgments pending completion are to be more than 24 months old”.

The lodgement figures reported for the criminal jurisdiction include matters committed for

trial, matters committed for sentence, breach of bond matters, matters transferred from a

summary court, ex-officio informations and various minor applications.

Various factors (not all of them under the Court’s control) influence the Court’s ability to meet

the standards. Tables 1 to 4 evidence a continued reduction in the backlog of work, despite

increased lodgements.

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Table 1 – Combined (Supreme Court and District Court) Criminal Backlog

2006 2007 2008

Number of lodgements pending as at year’s end 1394 1285 1374

Number of lodgements more than 12 months old (but less than 24 months old)

302 (22%)

252 (20%)

204

(15%)

Lodgements more than 24 months old

115 (8%)

93 (7%)

70 (5%)

Table 2 – Supreme Court Criminal Backlog – Non-Appeal

2006 2007 2008



10 (14%)

8 (19%)

1 (2%)


10 (14%)

2 (5%)

3 (7%)

Table 3 – Court of Criminal Appeal Backlog

2006 2007 2008



0 (0%)

0 (0%)

1 (2.2%)


0 (0%)

0 (0%)

0 (0%)

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Criminal Jurisdiction Clearance Ratio

The clearance ratio is the ratio of finalisations to lodgements over a reporting period. The

standard is 100%, which indicates that the Court is disposing of matters at the same rate as

lodgements occur. A figure above 100% indicates that more cases are disposed of than are

received.

Table 4 – Combined (Supreme Court and District Court) Criminal Clearance Ratio (non-appeal)

2006 2007 2008

Number of lodgements 1921 1995 2360

Number of finalisations 1741 2119 2305

Clearance ratio (%) 91% 106% 98%

Table 5 shows that the Supreme Court continues to dispose of matters at a rate exceeding

lodgements.

Table 5 – Supreme Court Criminal Clearance Ratio – Non-Appeal

2006 2007 2008




Table 6 shows that lodgements in the CCA increased in 2008.

Table 6 – Court of Criminal Appeal Clearance Ratio

2006 2007 2008




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Civil Jurisdiction Backlog

The Court’s civil workload is measured using the same two standards applied to the criminal

workload.

The figures reported for the civil jurisdiction non-appeal backlog (Table 7) excludes Probate

and Admission applications. Most of the matters pending are at the pre-trial stage before the

Masters. While the timeline standards are still not being met, performance against the

standards has continued to improve, notwithstanding a substantial increase in lodgements

pending.

Table 7 – Supreme Court Civil Backlog – Non-Appeal

2006 2007 2008



117 (18%)

100 (17%)

105

(13%)


132 (20%)

106 (18%)

133

(17%)

In Table 8 the figures for the appeals backlog include Full Court appeals, all Magistrates

Court appeals and other miscellaneous appeals. Although the percentage of matters

between 12 and 24 months old has increased, it remains within the standard.

Table 8 – Supreme Court Civil Backlog Appeals (Includes Magistrates’ Civil and Criminal Appeals)

2006 2007 2008

Number of lodgements pending as at year’s end 122 72 86*


12 (10%)

3 (4%)

9

(10%)


5 (4%)

2 (3%)

2 (2%)

* includes appeals not yet set down by the parties

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Table 9 shows that lodgements have increased in 2008 compared with last year by 10%

(n=117). There has been a decrease in the clearance ratio, reflecting the fact that the

number of finalisations was a little less than last year, while the number of lodgements

increased.

Table 9 – Supreme Court Civil Clearance Ratio – Non-Appeal

2006 2007 2008



Clearance ratio (%) 90.3% 91.6% 81.5%

General Statistics

This section of the Report sets out a number of tables containing statistics relating to the

work of the Court.

It is important to note that there are other aspects of the Court’s work, and of the work of the

three Registries (Civil, Probate and Combined Criminal), that are not reflected in these

tables.

Time Standards

The time standard for civil trials from listing conference to start of trial is set at six to eight

weeks. In 2008 the time between listing conference and trial ranged from six to thirty weeks.

The Court is usually able to provide a trial date within a close time to the standard, but most

parties are not ready to proceed at that time.

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Table 10 – Target Standards and Actual Achievements

Target 2006 Actual

2007 Actual

2008 Actual

Civil Cases Listing Conference to start trial

6-8 wks 3-28wks 1-29wks 6-30wks

Criminal Cases Arraignment to start trial (180 days standard)* Arraignment to start trial (365 days standard)*

80%

100%

9%

70%

5%

77%

11%

76%

Single Judge Appeal Next List No Delay No Delay No Delay

Full Court Civil Appeals Next List No Delay No Delay No Delay

*as at October each year

The average time between institution of an appeal to the Full Court and setting down for

hearing of the appeal increased by 36% in 2008 compared with last year (n=29 days). This

time is not within the control of the Court. Appeals are automatically dismissed if they are

not set down for hearing within six months of institution.

Table 11 shows the time taken from setting down to hearing has increased, even though the

Court is usually able to offer an earlier listing if required. The period from hearing to the

delivery of judgment in the Full Court has also increased by 21%( n=16 days).

In relation to criminal appeals, there has been a 14% decrease in the time between leave

being granted and the appeal hearing (n=6 days). The time taken to deliver judgment has

also decreased by 14% (n=8 days).

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Table 11 – Full Court and Court of Criminal Appeal Time Intervals

Full Court 2006 2007 2008

Average time taken (days)

Institution to setting down (not under the Court’s control)

99 80 109

Setting down to hearing 40 41 29

Hearing to judgment delivery 98 74 90

Court of Criminal Appeal 2006 2007 2008

Average time taken (days)

Application to leave being granted 56 57 41

Leave granted to hearing 42 42 36

Hearing to judgment delivery 48 60 52

Full Court and Court of Criminal Appeal

Three judges usually constitute the Full Court (for civil appeals) and the Court of Criminal

Appeal (CCA). Appeals and applications to both the Full Court and the CCA increased this

year. This data is displayed in Tables 12 and 13 below.

Table 12 – Permission to Appeal Applications to the Court of Criminal Appeal

2006 2007 2008

Applications for permission to appeal (dealt with by single Judge)

121 96 112

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Table 13 – Appeals and Applications to the Full Court and Court of Criminal Appeal

2006 2007 2008

Full Court (appeals and applications) 85 74 78

Court of Criminal Appeal (appeals and applications) 141 108 129

Total 226 182 207

Table 13 includes applications for permission to appeal that were considered by the Full

Court or the CCA. It also includes appeals that have been instituted but have not been set

down by the parties at the end of the reporting period. Table 14 records appeals that were

heard by the Full Court and CCA. The difference between these tables reflects cases in

which leave to appeal was refused, leave applications or appeals were abandoned, appeals

were not set down by the parties, or remained unheard at the end of the year.

Table 14 – Disposals by Hearing

2006 2007 2008

Full Court 70 58 45

Court of Criminal Appeal 103 93 78

Total 173 151 123

Table 15 – Full Court – Average Hearing Lengths

2006 2007 2008

Full Court – average actual length (hours)

3.21 3.13 3.73

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Single Judge Appeals

Each month, one judge is allocated to work in this jurisdiction, with some assistance in most

months from another judge or judges. Appeals from Magistrates in the criminal (Summary)

jurisdiction outnumber civil appeals by more than three to one. The civil appeals are from

Masters of this Court, from interlocutory (preliminary) orders in the District Court, from

Magistrates in the civil jurisdiction, and from various Tribunals and Boards. Table 16 below

shows the number of appeals that were disposed of by way of judgement.

Table 16 – Disposals by Judgment – Single Judge Appeals

2006 2007 2008

Criminal appeals 135 139 149

Civil appeals 67 32 43

Total disposed 202 171 192

The Civil Jurisdiction

Lodgements

Table 17 shows a 9% increase in summonses issued in the civil jurisdiction of the Supreme

Court. The number of companies applications lodged decreased by 16% this year (n=35).

Table 17 – Civil Jurisdiction – Matters Instituted

2004 2005 2006 2007 2008

Summonses 1020 1158 1167 1197 1302

Companies application – companies liquidation 206 154 149 215 180

Other company matters 137 81 104 61 49

Total 1363 1393 1420 1473 1531

Land and Valuation Court The Land and Valuation Court is a division of the Supreme Court.

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Three judges constituted the Court in the 2008 calendar year. They were Justice Debelle,

until his retirement on 25 June 2008, Justice Bleby, and Justice Kourakis from 16 October

2008.

The Division hears a variety of actions, mainly matters relating to land use and value. The

specialist nature of this Division enables speedy determination of actions. All cases are

judge managed to completion. Hearings include judicial review of planning decisions, compensation for compulsory acquisition of land and planning appeals from the

Environment, Resources and Development Court.

During the 2008 year 43 actions were disposed of, leaving 22 active matters unresolved.

Approximately one third of all actions commenced this year involved Government agencies

such as the Commissioner of Highways and the Valuer-General, while a further 43%

involved various Local Government Councils. The remaining 23% of actions were disputes

between individuals or corporations.

There were 14 contested hearings and four contested interlocutory applications in the Court

during the year. All contested hearings were actions that were planning appeals,

applications for judicial review or valuation appeals. While the average length of hearing

was just under one day, the number of half day hearings, one day hearings and one and a

half day hearings is about equal. The average length of time spent in hearing contested

interlocutory applications was just over one hour.

As at 31 December 2008, there were three outstanding judgments in the Court.

The following is an analysis of the Court’s active matters from 2006 to 2008 as at year end.

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Table 18 – Land and Valuation Division

Type of Action Percentage

2006 2007 2008

Encroachment 5% 2% 23%

Planning Appeals 20% 17% 14%

Judicial Review 17% 12% 18%

Partition and Sale 15% 9% 14%

Compulsory Acquisition 17% 50% 18%

Valuation Appeal 10% 5% 14%

Other 17% 5% -

The number of actions commenced in this Division has varied, with no particular trend, and

has ranged from 17 actions in 2006 to 33 cases in 2008. The average number per annum

for the last six years is 29.

Table 19 – LVD Actions Commenced

No. of Summonses 2004 2005 2006 2007 2008

Summons issued 26 32 17 26 33

The Land and Valuation Rules, although amended from time to time, have not been

comprehensively reviewed since they were first enacted in 1970. This is despite

comprehensive reviews of the Supreme Court Rules in 1986 and 2006. The present rules

are outdated and are in need of revision. The Judges of the Division do not have the time or

the resources to undertake a comprehensive review. It is hoped that an appropriate budget

allocation can be made to enable this task to be undertaken in the near future.

Civil Trials The number of civil cases ordered to proceed to trial (excluding long and complex cases) in

2008 decreased slightly (n=2).

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Table 20 – Civil Trials

CIVIL TRIALS 2004 2005 2006 2007 2008

Orders to proceed to trial 44 44 36 36 34

Cases fixed for trial 30 43 39 37 31

Disposals after fixing of trial date 52 31 24 31 31

Cases disposed of by trial* 19 24 17 16 15

Cases awaiting trial at end of year 26 21 17 15 15

*This figure is included in “Disposals after fixing of trial date”.

During 2008 the Court was listing trials up to seven months after the Listing Conference.

The Court continues to be able to offer earlier trial dates, but parties continue to ask for later

dates.

Table 21 shows that the average trial length (for cases tried to judgment) has increased from

2007.

Table 21 – Civil Trial Details

2004 2005 2006 2007 2008

Average trial length (days) 1.22 4.38 2.7 2.9 4

Number of trials exceeding five days in length

4 4 5 4 3

Long and Complex Civil Cases A panel of judges (Justice Debelle - until his retirement - and Justices Bleby, Anderson and

White) managed the list of long and complex cases with the assistance of the Masters. Long

and complex cases are cases expected to take more than 15 hearing days or involving

complex issues of law and/or fact.

The management of these cases requires the judges to conduct pre-trial proceedings and,

where appropriate, examine the possibility of alternative dispute resolution. The judges

endeavour to define and reduce the issues with a view to reducing the length of the trial.

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On occasions parties appeal against decisions made by a judge in these pre-trial

proceedings, causing delay in the listing of the action for trial.

Most of the management conferences were of short duration. However, some pre-trial

applications took a considerable hearing time and required reasons for judgment. The

management of these cases is a task over and above the ordinary workload of the panel

judges.

At the beginning of the year the list comprised 15 actions. A further 14 were added during

the year, a substantial increase from the 8 new matters for 2007. Of those 29 actions, 8 had

trial dates fixed for 2008 and a further 8 have trial dates fixed for 2009. By the end of the

year, 10 matters had been completed or resolved. One matter had a trial of 45 days

duration and judgment was delivered, one trial settled after two days of hearing. Eight

matters were discontinued or resolved by consent order, and of those 6 had trial dates fixed.

The 8 trials listed in 2008 had an aggregate estimated sitting time of 48 weeks. All actions

listed in 2008 were resolved. Of the total number of actions listed in 2008, 6 were referred

for mediation, 3 settled, 1 went on for trial and the remaining 2 are likely to resolve in 2009.

At the end of the year, there were 19 matters in the long and complex list. Eight matters

have been listed for trial although settlement has been indicated for one of them. The

remaining 11 matters in the list are under active management. Four of those matters are

close to having a trial listing in 2009.

Table 22 – Long and Complex Cases

2004 2005 2006 2007 2008

Number of cases in the Long & Complex list at year’s end 20 13 16 15 19

Number of cases with estimates of six weeks or greater 6 3 3 4 9

Range of estimated length (in weeks) 1-26 2-52 3-52 3-52 1-12

Total number of trial days sat on Long & Complex matters 14 29 101 46 47

Masters’ Jurisdiction There was a slight decrease of 4.5% in the number of hearings in 2008 compared with 2007

(n=133). While there was a decrease in the number of urgent chamber applications heard,

there was an increase in the number of hearings in court.

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Table 23 – Applications Dealt with by Masters

2004 2005 2006 2007 2008

Hearings in court 754 509 592 654 689

Hearings in chambers (possession and interlocutory applications)

2187 1940 2089 2206 2055

Hearings in chambers (urgent applications) 228 116 116 107 90

Total 3166 2565 2797 2967 2834

Case Flow Management

The status hearing (the first hearing) is used to get the parties ready for a settlement

conference as soon as possible. If the parties are unable to resolve the matter at the

settlement conference the matter is adjourned to a final directions hearing, which is used to

get the matter ready for trial.

Table 24 – Number of Conferences

2004 2005 2006 2007 2008

Status hearing (SH) - No. of SHs held - No. at first hearing

288

179

355

138

500

168

372

147

404

167

Settlement Conferences (SC) - No. of SCs held - No. at first hearing

116

80

184

98

160

95

138

80

194

102

Final Directions Hearing (FDH) - No. of FDHs held - No. at first hearing

397

111

512

93

392

70

517

92

494

87

* A ‘first hearing’ records the number of cases involving a first hearing of the relevant conference type (i.e. each case is counted only once for this figure).

The primary responsibility for the case flow management system rests with the Masters of

the Court. They oversee all cases in the general civil list and ensure that solicitors

appearing for parties, as far as possible, meet the prescribed time standards.

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Bill of Costs and Schedules of Costs

Table 25 – Contentious Bills – Masters’ Jurisdiction

2006 2007 2008

Bills / schedules filed 24 43 20

Bills / schedules taxed 48 38 17

Table 26 – Non-Contentious Bills – Registrar’s Jurisdiction

2006 2007 2008

Bills / schedules filed 16 3 11

Bills / schedules taxed 16 3 11

The Combined Criminal Registry

Lodgements

Table 27 below shows a significant increase in lodgements (386) in the combined criminal

jurisdiction in 2008.

Table 27 – Combined Criminal – Lodgements

2004 2005 2006 2007 2008

Lodgements 1773 1964 1921* 1974 2360

* The counting rules in relation to lodgements were varied slightly in 2006 in line with the 2005-2006 CAA Annual Report. As a result of this some lodgement types that were previously counted have been excluded, i.e. Bench Warrants, Change of plea, Change of venue, and re-trials.

Table 28 shows a slight increase in the number of matters that have been disposed of after

being listed for trial. For these purposes, disposals include matters with a trial date set and

then a guilty plea entered before or on the day of trial; a nolle prosequi entered before or on

the day of trial; trials with verdicts, including mental impairment trials; and disputed facts

hearings that were listed and disposed of.

The average length of trial increased slightly in 2008, compared with 2007. Overall, the

average trial length has not varied significantly since 2005.

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At the end of December 2008, 519 trials had been listed for hearing in 2009. This is a

significant increase compared with the number of trials listed and awaiting hearing at the end

on December each year from 2004 – 2007.

Table 28 – Combined Criminal – Trial List Disposals

2004 2005 2006 2007 2008

Disposals after entry into trial list (includes non-verdict disposals)

364 388 516 533 540

Average length of trial (in days) – commencement of trial to verdict

8.1 6.6 6.5 5.7 6.3

Listed trials outstanding (at end of year) 261 299 466 430 519

Table 29 shows a slight decrease in the number of trials that proceeded to verdict in 2008,

when compared with 2007. Of those trials that proceeded to verdict, the length of trial has

been relatively consistent with the trial lengths in 2007. Only 2% more trials were long trials

with a length of over 10 days.

Table 29 – Combined Criminal – Length of Trials Proceeding to Verdict

2004 2005 2006 2007 2008

Trials to verdict 150 154 176 166 159

1-2 days 17% 7% 8% 5% 8%

3-4 days 37% 34% 32% 39% 38%

5-10 days 35% 45% 48% 45% 41%

Over 10 days 11% 14% 11% 11% 13%

Admission to the Legal Profession

Background

The Legal Practitioners Act 1981 establishes the Legal Practitioners Education and

Admission Council (“LPEAC”) and the Board of Examiners.

The Chief Justice chairs LPEAC. The other members of LPEAC include the Attorney-

General, three Judges from the Supreme Court or the Federal Court, the Deans of Law at

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Flinders University and at the University of Adelaide, representatives of the legal profession

and a law student representative.

LPEAC has asked the Attorney-General to put forward an amendment to the Legal

Practitioners Act 1981 (SA) that would make the Dean of Law at the University of South

Australia a member of LPEAC. Meantime the Dean, Professor Fairall, attends LPEAC

meetings as an observer.

LPEAC has the responsibility to set the academic and practical requirements for admission,

to participate in the development of uniform national standards relating to admission

qualifications; to review the effectiveness of legal education and training courses, and to

perform any other functions assigned to LPEAC pursuant to the provisions of the Legal

Practitioners Act.

LPEAC’s work in 2008

LPEAC met on six occasions during 2008.

LPEAC undertook a general review of the Graduate Diploma of Legal Practice (“GDLP”).

By arrangement with the Management Committee an assessment committee was

established, which included three members of LPEAC, one of whom was the Dean of Law at

Adelaide University. The assessment committee provided a detailed report to LPEAC. The

Management Committee commented on aspects of the report. LPEAC was satisfied that the

assessment committee had undertaken a thorough review of the GDLP. LPEAC resolved

that the Graduate Diploma in Legal Practice Course met the requirements of Rule 2.4 (a) of

the Legal Practitioners Education and Admission and Council Rules 2004 (“the LPEAC

Rules”).

In 2008 LPEAC accepted a proposal from the national Law Admissions Consultative

Committee (“LACC”) intended to achieve uniformity in the assessment of qualifications of

overseas applicants for admission. The proposal involved admitting authorities agreeing on

uniform principles for the assessment of such qualifications, and also agreeing to centralise

the consideration of such applications so as to minimise the scope for differences of

approach. LPEAC also adopted recommendations by LACC relating to English language

proficiency of applicants for admission.

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LPEAC approved in principle Uniform Admission Rules developed by LACC and resolved

that regard would be had to the uniform rules in any revision of the Admission Rules or the

LPEAC Rules.

LPEAC considered proposals by LACC relating to conditional admission to practice. After

discussion, LPEAC resolved that it was unpersuaded of any need for specific provision to be

made for conditional admission in South Australia.

LPEAC considered a notification from the Dean of Law at the University of Adelaide of a

restructure of the LLB degree at that University. After considering the proposal in some

detail, LPEAC resolved that it was satisfied that the proposed restructure of the LLB degree

would meet the requirements of Rule 2.2 of the LPEAC Rules.

A Working Group chaired by Justice Besanko of the Federal Court met during the year and

submitted a detailed proposal to LPEAC as to the approach that LPEAC might take in future

to approving the courses that lead to degrees in Law offered by Flinders University, the

University of Adelaide and the University of South Australia. LPEAC expects to continue

considering that issue in the coming year. It hopes to settle a framework within which it can

operate in the future. If a framework can be agreed, this will give the Universities advance

information about what information will be expected from them when LPEAC undertakes a

general review of their courses in law.

LPEAC consults regularly with the Board of Examiners on matters relating to admission to

practice. To facilitate communications between the two bodies Judge Withers (the Presiding

Master) attends meetings of LPEAC as an observer.

The Board of Examiners

The Chief Justice appoints the members of the Board of Examiners. The Board comprises a

Master of the Court, two persons nominated by the Attorney-General and 12 legal

practitioners. Judge Withers is the Presiding Member. The Board of Examiners inquires into

applications for admission and reports to the Court whether an applicant has complied with

the requirements for admission. The Board met on 11 occasions in 2008. During 2008

there were 249 applications for admission, compared with 251 in 2007.

Table 30 – Applications for Admission (other than Mutual Recognition applications)

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2004 2005 2006 2007 2008

Applications for admission 230 274 244 251 249

The Mutual Recognition Act, 1992 enables a practitioner who is admitted in one jurisdiction

to be admitted in other jurisdictions.

Table 31 – Mutual Recognition Applications

2004 2005 2006 2007 2008

Mutual recognition applicants 48 52 62 49 58

Table 32 – Mutual Recognition – Applications by State

2004 2005 2006 2007 2008

New South Wales 26 28 39 26 23

Victoria 10 5 5 7 11

Queensland 2 7 8 2 6

ACT 2 3 3 4 3

Western Australia 0 4 1 2 4

Northern Territory 4 2 3 5 9

Tasmania 1 1 0 1 2

Trans-Tasman 3 2 3 2 0

The number of overseas qualifications assessed was substantially higher in 2008.

Table 33 – Overseas Degrees Assessed

2004 2005 2006 2007 2008

Degrees assessed 21 14 26 24 49

Probate Registry The largest proportion of the work of the Probate Registry consists of the issue (in non-

contentious cases) of grants of probate or administration in respect of the estate of

deceased persons. In issuing such grants the Registrar of Probates exercises the powers of

the Court in matters prescribed by the Rules of Court.

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The Registry was again very busy in 2008. The total number of grants of representation

remained high (Table 34), and the number of new applications was even higher (Table 35).

The backlog of applications awaiting a grant has increased substantially.

New procedures implemented during 2008 have streamlined the Registry’s dealings with

personal applicants. The Registrar, Deputy Registrar and Manager, Probate Services

between them see personal applicants between 9am and 10.30am each morning. This has

resulted in greater efficiencies for both the Court and for all applicants.

Table 34 – Probate Registry – Grants and Orders

2006 2007 2008

Grants issued 4727 5027 4968

Grants resealed in South Australia 43 28 31

Orders made in chambers 270 310 509

Inquiries and searches 9720 1076* 1015**

Personal applicants 313 342 301

* Since 2007, general telephone inquiries have not been included in the figure for

inquiries and searches. ** The antiquated microfiche reader was unserviceable for the last two months of the

year and as a consequence few searches were undertaken in that period. There is a substantial backlog of searches that cannot be undertaken until new digital technology is commissioned.

Table 35 – Probate Registry – Total applications

2006 2007 2008

5134 5286 5517

The Library Increases in the costs associated with collection development have continued to place

severe pressure on the Library Service’s budget and have been a major focus of the Library

staff during 2008. A review of the smaller collections that are located adjacent to a number of

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chambers and which are shared between judges, and of the collection located in the

Adelaide Magistrates Court building has commenced, with a view to rationalizing printed

subscriptions and where possible utilizing more affordable electronic databases. There

continues to be a shortfall between available funding and the cost of maintaining the

collection.

During 2008 the Attorney-General agreed to a request to increase the library levy

component of the annual fee for legal practitioners’ practising certificates to $100 per annum

with CPI increases. It is hoped that this will help alleviate the budgetary pressure to some

extent.

On 17 March 2008 sections of the first and second floors of the Supreme Court Library were

inundated with water from a burst water pipe located on the third floor of the building.

444 volumes were damaged directly from the water and were quickly removed for remedial

treatment by experts. Subsequently 97 volumes were assessed to be of insufficient value to

the collection to warrant repair and were discarded. 81 volumes were beyond repair and

replacements have been ordered. 216 volumes suffered only minor damage and were able

to be returned to the collection. The remaining volumes are being rebound and undergoing

minor repair. The cost of repairs and replacements was approximately $21,000.

In light of the risks highlighted by the incident, a review of the content and management of

the Library Historical Collection was undertaken and policy guidance regarding the storing of

the Collection is being sought.

The Library’s Automated Information Management System is now 17 years old. The

availability of expert system support is declining. The issue has been identified as posing a

significant risk to the Library’s business continuity. During the later stages of 2008 a

Business Case was prepared recommending that the Authority invest in a modern

Automated Library Management System.

During 2008 the Library Service continued to be well patronized with an average of

approximately 99 visits each day to the Supreme Court Library and approximately 9,000

documents being downloaded each month from its electronic database subscriptions.

DATED this 10th day of March 2009 CHIEF JUSTICE On behalf of the Judges of the Supreme Court

REPORT OF THE JUDGES OF THE - Courts Annual... · Mr Antony Reid-Smith LLB . ... Courtrooms 1 and 5...

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